Docket: IMM-4837-11
Citation: 2012 FC 193
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Montréal, Quebec, February 9, 2012
Present: The Honourable
Mr. Justice Shore
BETWEEN:
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SECHAN YOON
JISEOK YOON
JIWON YOON
JIN KYUNG KIM
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I Introduction
1.
The
RPD occupies a privileged position as a tribunal of fact. It has the
opportunity to hear claimants and to listen to them in order to pinpoint the
crux of the claim, the basis of the story they relate to the panel.
2.
An
interpreter does exceptional work in that he or she must translate every nuance
of the claimants’ statements to the panel. In addition, claimants have the
right to be heard under section 14 of the Canadian Charter of Rights
and Freedoms, Part I of The Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c 11 [Charter]. However, it may
happen that an inadequate interpretation results in the panel losing the
advantage it derives from the hearing, that is, listening to the claimants in
order to properly assess their fear.
3.
The
testimony of refugee claimants already requires that the administrative
tribunal be receptive to the various nuances in their statements that directly result
from their experiences and are based on their own perceptions. Thus, the
interpreter plays a crucial role in assisting the panel in its task of actively
listening to claimants. As explained in the Immigration and Refugee Board’s Interpreter
Handbook at page 35:
During a hearing before the RPD,
refugee claimants are requested to tell the panel what has led them to claim
refugee status. In having to provide details about their circumstances,
claimants often have to recall very sensitive and emotional moments of their
life, about which they may find it difficult to speak. In those
instances, your ability to demonstrate professionalism will inspire greater
confidence and help facilitate a free-flowing exchange between the panel and
the claimant. [Emphasis added]
4.
Ensuring
that the entire case or the full picture of a narrative is understood requires
a clear, accurate, comprehensible translation. Without this, the panel may not
be able to adequately assess the credibility of a narrative. Moreover, reasoning
that shows a lack of credibility would be called into question by a translation
that does not correctly reflect a claimant’s testimony.
II Legal
proceeding
5.
This
is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial
review of a decision by the Refugee Protection Division [RPD] of the
Immigration and Refugee Board [IRB] dated June 13, 2011, which determined that the applicants are neither
Convention refugees as defined in section 96 of the IRPA nor persons in need of
protection under section 97 of the IRPA.
III Facts
6.
The
principal applicant, Sechan Yoon, his wife Jin Kyung Kim, and their
children Jiseok Yoon, who is 15, and Jiwon Yoon, 17, are citizens of
South Korea.
7.
Sechan Yoon,
his wife and their children claim that they fear the senior leaders of the JMS
church, a religious sect [sect] founded by Jung Myung Seok in 1980. Because
they left the sect, they were referred to as “traitors.”
8.
Jying
Kyung Kim joined the sect when she was still a student. She says that she was
sexually assaulted by the religious leaders of the sect while completing her
post‑secondary studies. She is afraid that the same thing will happen to
her daughter should they return to South Korea.
9.
Sechan Yoon
joined the sect in 1993 and worked for it in 1999 as a parking lot operator and
as manager of gambling activities from October 2005 to October 2007. He was
convicted three times for his actions on behalf of the sect. He was convicted twice
of fraud and insolvency because of significant debts he incurred for the
benefit of the sect and was imprisoned, then convicted a third time when he was
arrested with other members of the sect for gambling. His last prison stay was
October 15, 2007, to June 30, 2008.
10.
Sechan Yoon
and his wife argued about the place of the church in their life. Jying Kyung
Kim left the family in November 2007 to live on her own. She continued to work
for the sect. The couple’s two children went to live with her husband’s
parents. Their mother telephoned them once a month.
11.
Sechan Yoon
gradually pulled away from the sect in 2005. He says that it was difficult for
him to find employment because of his criminal record. In 2008, he worked for a
flower grower and claims that members of the sect showed up at his workplace.
After that event, the owner asked him to leave.
12.
Sechan Yoon
and his children arrived in Canada on July 30, 2009. On August 5,
2009, they claimed refugee protection.
13.
Having
reconciled with her husband, Jying Kyung Kim arrived in Canada on
December 18, 2009, and claimed refugee protection on December 22,
2009.
IV Decision that is the subject of this
application for judicial review
14.
The
RPD determined that the applicants were not credible for the following reasons:
(a) The
principal applicant testified at the hearing that representatives of the sect
had come to his workplace to threaten him, which is why he lost his employment.
However, he did not mention this in his Personal Information Form [PIF].
(b) The
applicant’s testimony contradicted information in his PIF as to the number of
months he had worked for the flower grower.
(c) The
documentary evidence reveals that the senior leaders of the sect were convicted
of sexual assault, which shows that South Korea is capable of protecting its
citizens. The applicants could therefore file a complaint.
(d) There
is no evidence that the applicants’ daughter, now aged 17, was a follower of
the sect or that she had been targeted by members of the sect because the young
woman always lived at the same place and walked to school.
(e) The
applicants did not submit any evidence showing that the members of the sect
were pursuing them. In fact, they had not been threatened since 2008 even
though the principal applicant’s father had difficulty obtaining proof of
membership for the applicants from the sect. He had to say that the applicants
were in China and would be returning soon.
(f) The
threat that the principal applicant claims to have received in 2009 about the
risk of his children being kidnapped did not coincide with his initial
statements. Moreover, this risk did not amount to persecution because the
applicant testified that it was the practice of the sect to make children work
during the summer selling flowers and cashews without pay.
(g) The
RPD was unable to identify the applicants’ actual place of residence because
Ms. Kim did not ask for a new household register card when she moved.
(i)
The
principal applicant had always lived at the same place and never attempted to
flee from the sect.
15.
The
RPD applied the guidelines during Ms. Kim’s testimony about her alleged
sexual assaults. Her husband was not present when she testified. These
incidents were not mentioned in her PIF because she did not want her husband to
know about them.
16.
The
RPD also found that an internal flight alternative [IFA] was available in the
cities of Changwon or Pusan. The RPD rejected the applicant’s submission that
their household register card would enable members of the sect to find them.
The RPD was also of the view that there was no evidence that the sect would be
interested in seeking them out should they return. The RPD found that it would
not be unreasonable for the applicants to relocate to the suggested IFA’s
despite the applicant’s criminal record and despite the fact that Ms. Kim was
being trained as a chef in Canada.
V Issue
17.
The
primary issue is as follows:
Did the interpretation errors during the
hearing breach section 14 of the Charter and the principles of procedural
fairness during the hearing?
VI Relevant
statutory provisions
18.
The
following provisions of the IRPA apply to this case:
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Convention refugee
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country
Person in need of protection
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the person is unable or, because of that risk, unwilling
to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of
that country and is not faced generally by other individuals in or from that
country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that country
to provide adequate health or medical care.
Person in need of protection
(2) A
person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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Définition de « réfugié »
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques:
a) soit se trouve hors de tout
pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne
veut se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Personne à
protéger
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée:
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou
au risque de traitements ou peines cruels et inusités dans le cas suivant:
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la
protection de ce pays,
(ii) elle y est exposée en tout lieu de ce pays alors que
d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont
généralement pas,
(iii) la menace ou le risque ne résulte pas de sanctions
légitimes — sauf celles infligées au méIFAs des normes internationales — et
inhérents à celles-ci ou occasionnés par elles,
(iv) la menace ou le risque ne résulte pas de l’incapacité du
pays de fournir des soins médicaux ou de santé adéquats.
Personne à protéger
(2) A également qualité de personne à protéger la personne
qui se trouve au Canada et fait partie d’une catégorie de personnes
auxquelles est reconnu par règlement le besoin de protection.
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VII Position of the parties
19.
The
applicants maintain that the translation problems with the interpreter
designated by the RPD are responsible for the RPD’s findings on the lack of credibility.
Since the applicants do not speak French, an interpreter was present at the
hearing to translate from French to Korean and from Korean to French. At the
hearing, another interpreter was present, Ki‑Chan Yune, who had
translated the family’s documents on its arrival in Canada.
20.
The
applicants submit that Mr. Yune noted a number of irregularities in the
translation, that the applicants had difficulty understanding the questions and
that the interpreter had problems following the proceeding. The applicants
informed the RPD during the hearing of possible translation problems, but the RPD
refused to change interpreters because the applicants had admitted that they
understood the interpreter’s Korean. The applicants state, however, that they
were unable to evaluate the interpretation at the time.
21.
The
applicants argue that the interpreter’s corrections and the numerous questions clarifying
the applicants’ testimony prevented the applicants from setting out the basis
of the claim in fairness.
22.
The
applicants say that they had the right to a precise, impartial and
contemporaneous interpretation of their testimony by a competent person in accordance
with section 14 of the Charter. Therefore, the RPD erred by refusing to
adjourn the hearing or to change interpreters despite the obvious translation
problems.
23.
The
applicants introduced into evidence an affidavit of Mr. Yune, who reviewed
the transcript of the hearing and identified the primary interpretation
problems that affected the heart of the applicants’ narrative.
24.
Furthermore,
the applicants maintain that the IFA suggested by the RPD is unreasonable
because the RPD did not refer to the documentary evidence. The applicants also
argue that the translation problem tainted the RPD’s reasoning on the
possibility of finding the applicants through the household registry card.
25.
The
respondent maintains that the applicants did not object to the interpreter’s
work when they had the opportunity to do so. On two occasions, they confirmed
that they understood the interpreter.
26.
In
addition, the applicants take the position that the Court should assign no
probative value to the affidavit of the interpreter, Mr. Yune, because he
is a friend of the applicants and is therefore not impartial. Moreover, he only
criticized the choice of certain words. In this regard, the respondent submits
that section 14 of the Charter does not require a perfect translation.
27.
Second,
the applicants’ lack of credibility is not solely attributable to the
translation since the RPD also noted inconsistencies and implausibilities in
the applicants’ testimony.
28.
Third,
the respondent states that the IFA suggested by the RPD is reasonable because
the applicants did not adduce evidence that it would be possible for the sect
to find them in the cities of refuge contemplated by the RPD, as shown by its
reasons for decision.
VIII Analysis
Did the interpretation
errors during the hearing breach section 14 of the Charter and the
principles of procedural fairness during the hearing?
29.
The
standard of review for this question is correctness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
30.
The
interpretation of the applicants’ testimony during the hearing is at issue
here. The Court made the following comments about the ramifications of
interpretation problems in Huang v Canada (Minister of Citizenship and Immigration),
2003 FCT 326:
[16] Therefore,
there is evidence that the interpreter made errors in translation. Unlike in Basyony
v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 427 at paragraph 8 (T.D.)
(QL), this is not a matter of “differences in nuance between what is said in
one language and its translation into another”. These errors are not trivial or
immaterial; they go to the very essence of the rejection of the claim. In this
case, the Board relied, at least in part, on the errors of translation to
support its conclusion that the Applicant was not credible. The main reason why
the Board rejected the Applicant's claim was this negative credibility finding.
It is my view that the Applicant was denied his right under section 14 of the Charter
to continuous, precise, competent, impartial and contemporaneous
interpretation. Since the Applicant's credibility was the determinative
issue in this case, this is sufficient to allow this application for judicial
review.
31.
In
this case, the Court is relying on Mr. Yune’s affidavit, the only evidence
in the record that takes into consideration the interpretation problems caused
by the translation at the hearing. In fact, he translated the documents in the
tribunal record [TR] for the applicants. Although Mr. Yune could not act
as an accredited interpreter before the RPD, it was not established that his
affidavit was not probative or that Mr. Yune was biased.
32.
The
Court notes from the partial transcript of the hearing that significant
interpretation errors occurred during the applicants’ testimony. By way of
example, the applicant stated that he had been employed by the flower grower
for only a few months, but the interpreter’s answer did not reflect that (Applicant’s
Record [AR] at page 165). The applicant’s incorrectly interpreted statement was
repeated in the RPD’s decision at paragraph 10 of its decision and undermined
the applicant’s credibility.
33.
The
exchanges between the RPD and the applicant on the issue of the household
registry as a means of finding the applicants are also worrisome. In fact, the
transcript shows that the applicant did not understand the panel’s question and
that the interpreter changed the date in his translation from French to Korean (AR
at page 170). Furthermore, Ms. Kim clearly stated that living somewhere
other than the registered address did not pose a legal problem, which the
interpreter translated as not being mandatory (AR at page 171).
34.
The
RPD determined that the applicants were not credible with respect to the
requirement to register the residence because Ms. Kim’s name was on the household
register card despite the fact that she no longer lived with the applicants (RPD
decision at paragraph 19).
35.
A
review of the transcript shows unequivocally that the RPD did not grasp certain
nuances of the applicant’s testimony because of the interpretation errors in
the translation. The Court has set out here just some examples of the many obvious
discrepancies between what the applicants said and what was translated for the
RPD during the translation. This tainted the RPD’s reasoning with respect to
both the assessment of subjective fear and the determination of the IFA.
36.
Furthermore,
the following exchange is problematic and shows that the translation caused
problems during the hearing:
[translation]
BY THE PRESIDING MEMBER (to the witness)
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O.K. That’s
not the question. My question is: how long have you been afraid of those 200
people? As of what date?
BY THE WITNESS (to the presiding member)
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Because
--- I was sent to prison ---
BY COUNSEL (to the presiding member)
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I have to
intervene because it seems that there is no ---
BY THE PRESIDING MEMBER (to the interpreter)
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I don’t
know whether it’s an interpretation problem or an evasion problem, but this
isn’t working. What question did you ask the claimant?
BY THE INTERPRETER (to the presiding member)
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No. I
asked what you said. How long? What date ---
(TR at
pages 329‑330)
37.
The
hearing was adjourned for a few minutes, counsel for the applicants spoke with
the interpreter who was observing, Mr. Yune, and then advised the RPD of
the possible translation problems:
[translation]
BY COUNSEL (to the presiding member)
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I don’t
know whether that’s what caused the misunderstanding. Mr. Yune says that
the complete question was not translated. Only how long have you been afraid
was translated but not as of what date and tell us the date, the month, the
year. I don’t know if they feel at ease. We can continue like this but if ---
BY THE PRESIDING MEMBER (to counsel)
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Yes, but
this man has been an official interpreter here for a number of years so I trust
him.
BY COUNSEL (to the presiding member)
-
Perfect.
BY THE PRESIDING MEMBER (to the witness)
-
We’ll
continue. I’m asking this question for the fourth time. The question is ---
INTERPRETER (to the presiding member)
-
I
explained to them because it’s a bit difficult for me because I don’t know
their story.
BY THE PRESIDING MEMBER (to the witness)
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But that’s
normal. That’s normal. Usually the interpreters do not know the claimants. O.K.
So, I’m going to ask the question for the last time. The question is: how long,
as of what date, have you been afraid of these 200,000 believers?
(TR at pages 331‑332)
38.
However,
it was only after the hearing that the applicants became aware of the extent of
the interpretation problems. Justice Simon Noël’s reasoning in Umubyeyi
v Canada (Minister of Citizenship and Immigration), 2011 FC 69 applies to
this case:
[10] In this case, the affidavit
evidence is sufficient to establish a concern of the adequacy of the
translation at the Board hearing. Understandably, there is a high evidentiary
threshold to establish that the Applicant waived her right to a fair
interpretation, and there is nothing to indicate that she did indeed waive her
right (Thambiah
v Canada (Minister of Citizenship and Immigration), 2004 FC 15; Sherpa,
above). In any event, even if mistranslation could be reasonably apparent
during the hearing itself, as it was in Elmaskut v Canada (Minister of
Citizenship and Immigration), 2005 FC 414, the matter can be sent for
redetermination before the Board.
[Emphasis added]
39.
The
Court cannot find that the applicants waived their Charter right. The Court
concedes that under section 14 of the Charter the translation need not be
perfect; however, the translation problems dealt with the key elements of the
claim and had a negative influence on the RPD’s assessment of the applicants’
subjective fear.
40.
This
is especially important since the RPD based its decision on the applicants’
lack of credibility and the implausibilities in their story, notably by finding
a lack of subjective fear and an IFA.
41.
After
a new hearing, the RPD’s reasoning could lead to the same finding of lack of
credibility, but, nevertheless, this new hearing is essential to ensure that
the translation does not cast doubt on the RPD’s potential reasoning.
42.
For
all the foregoing reasons, the RPD’s decision is set aside, the application for
judicial review is allowed and the case is remitted for reconsideration by a
differently constituted panel.
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